This guide will discuss the use of advance health-care directives in California, powers of attorney for health care, and directives to physicians.
In 2003 we had a client who came to us out of desperation. His daughter had suffered a venous stroke--a very rare type of stroke caused by a blood clot which can happen to young women who use certain types of birth control pills or after childbirth. The daughter, Julie, and her husband, Jack, were estranged at the time of the stroke, but he was still living in the same house because they could not afford to separate their living arrangements. Jack found Julie in her bedroom in the middle of the night, drooling and staring into space. He took her to the emergency room, where her medical condition was precarious. At this time, Jack was still the beneficiary of Julie's $100,000 life insurance policy. He happened to owe creditors about $45,000 in debt. The medical treatment that Julie was receiving was very expensive. Jack stood to gain if she died, and Julie's father believed that Jack was not making Julie's medical decisions in her best interests. Julie's Dad came to us to seek to revoke Jack's authority. Under California law, a spouse is by default allowed to make medical care decisions for their significant other. Representing Julie via her father, we presented the court with the facts of the situation: that they were an estranged couple intending to divorce, that the husband stood to gain by the premature death of his wife, that he had outstanding bills, that he was going to incur significant medical bills in her treatment and recovery, and that she had no medical care directive in place. Even though Julie and Jack were on their way to a divorce, she hadn't taken the next legal step of nominating someone else as her health care agent. As a result, we had to go to court to get Julie's dad appointed as her emergency health care agent so that he could instruct the doctor to save her life. The husband, on his own, had instructed the doctors with a DNR--a do-not-resuscitate form--as she was being wheeled into surgery. For a 28-year-old woman undergoing this type of surgery, a DNR was premature because there was a substantial possibility that she would need some sort of help coming out of this surgery. Luckily, we were able to get the husband's default authority revoked so that Julie's Dad could instruct the doctors to perform life-saving and sustaining treatment to try to save her life.
What Is an Advance Healthcare Directive?
If you don't want the default person to be making your medical care decisions, it's critical that you prepare an advance health care directive and give guidance to the agent (whom you have named) acting under that directive about what your wishes are in the event you end up in a persistent vegetative state or in some very significant medically compromised situation. California is among the states that have combined the legal documents in a medical or health-care setting into a single document known as an Advance Health Care Directive, or AHCD. This document is intended to streamline the process of allowing you to dictate how you want your medical care handled in the event you are incapacitated. Any adult can sign an AHCD--it is not just for those who are married. In the case of minor children, the legal guardian has the right to determine medical treatment, but if that legal guardian has also been injured or has died, it's important that hospital or medical staff have access to the wishes of that guardian for the child.
Breaking Down the AHDC
There are four components to the AHDC: 1. Nomination of a health care agent (This is what we discussed in the vignette above.) 2. Nomination of a conservator 3. Your wishes with regard to the continuation of medical treatment in the event you are in a persistent vegetative state with no likelihood of recovery 4. Your organ donation wishes Each of these components are broken out below.
Health Care Agents
While none of us want to think about these types of scenarios, the failure to think about them and plan for them can have disastrous results. Remember Terry Schiavo? A Florida resident, she suffered a severe brain injury and was on artificial nutrition and hydration for more than a decade while her relatives battled about the situation. In 2004, it became a nationally known case when Terry's husband was allowed to take her off of her artificial feeding tubes. Shortly after, Ms. Schiavo died. Had Terry Schiavo signed an AHCD nominating an agent to make decisions for her, and checked a box advising her agent it was acceptable to "pull the tubes" if there was no hope of recovery, this media circus could have been avoided. Medical personnel are reticent to make life-and-death decisions that relatives with different opinions might second-guess and force into the courts. Even more importantly, if you are injured or become gravely ill, wouldn't you want the hospital to know exactly who they need to obtain permission from in order to treat you? Wouldn't you want those agents to have some idea of what your wishes are, in the event there is an important medical decision to be made? For instance, if you are unconscious and the question comes up of whether to conduct surgery, your agent can discuss the benefits and risks with the doctor and then decide what they think you would want. If this authority is buttoned down properly, then decisions can be made quickly and without a lot of equivocation about what the individual in question might have wanted.
In most cases, your personal conservator (sometimes in other states called a guardian) will be the same as your health care agent. But if your agent lives too far away or is otherwise unfamiliar with your personal living situation, you might choose a conservator who would be in a position to help you with day-to-day oversight of your treatment. This person might be familiar with local facilities and options for long-term treatment and care, and have a more intimate knowledge of your personal care needs than a relative living far away might have. In California, there is a distinction between the conservator over your person and the conservator over your estate. The conservator over your person makes decisions about your personal care; the conservator over your estate makes decisions regarding the handling of your property and financial affairs. These might be the same or different people. For example, perhaps your brother is a very loving and caring person whose judgment you trust when it comes to your day-to-day living wishes. He lives nearby, is a nurse, knows about your medical situation, and you've had discussions about your ethics and wishes when it comes to your health. He is a perfect conservator over your person. However, your brother might not know much about managing money--but your sister does. Your sister works as a financial planner and is very savvy with investing. She is an ideal choice for a conservator over your estate. Of course, we can't all be lucky enough to have a nurse for a brother and a financial planner for a sister. This is an oversimplified scenario. And some of us don't have anyone we trust for either role. In this case, there is such a thing as a private professional fiduciary--someone who provides these sorts of services for a living. . In California, these are professionals licensed by the state to serve in this role as their profession. Now is the time to interview possible nominees and determine whether they might be appropriate people to serve this role on your behalf. A directory of private professional fiduciaries can be found through their professional associations. The most well known such association is the Private Professional Fiduciary Association of California (PFAC): http://www.pfac-pro.org.
Discontinuing Medical Treatment if You Are in a Persistent Vegetative State
The third part of the health-care directive form deals with your wishes in the event you are in a persistent vegetative state (called "PVS" in this section). A PVS is generally defined as a condition in which you are unconscious (unresponsive to verbal command, no voluntary or goal-directed behavior) and unlikely to recover. Sometimes referred to as "a vegetable" or "brain dead," it is a state where the doctors and medical staff believe it is very unlikely that you will recover any sense of consciousness, let alone a normal functioning life. Nevertheless, there is hope, and there are those who believe that a miracle can and will occur for them. In this instance, the form allows you not only to "check a box," saying, for example, that you do not want the respirator to remain plugged in if you cannot breath on your own, but also to specify more detail about your beliefs--like whether you want artificial nutrition and hydration continued; whether you want painkillers to be administered when you are unconscious, even though they may prolong your life (by reducing fever; or whether you want specific religious doctrine to be consulted when these decisions are made.
California permits you to specify whether you wish to make anatomical gifts in the event of your death--in other words, if you want to become an organ donor. You can even specify what purpose or purposes you would like those gifts to be used for. For example, you can say "transplant only," or you can specify that your tissues can be used for therapeutic, education or research uses. These might not be pleasant things to think about while we are alive and well, but a little foresight could save a lot of heartache down the line. A sample Advance Health Care Directive Form is locatedon our website.
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